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					Interviewing Journalists: Media Coverage of the University of Michigan Affirmative Action Decisions

Terri L. Towner Graduate Student Department of Political Science Purdue University

Rosalee A. Clawson Associate Professor Department of Political Science Purdue University

Eric N. Waltenburg Associate Professor Department of Political Science Purdue University

Prepared for delivery at the Southern Political Science Association Meeting, New Orleans, Louisiana, January 6-8, 2005. We would like to thank the Purdue University School of Liberal Arts for their support of this research. Katsuo Nishikawa also provided able assistance on this paper; we appreciate his valuable insight and linguistic abilities.

1 The U.S. Supreme Court regularly articulates policies of profound political and social consequence. Rarely, however, does the Court take a significant or active role in the broad dissemination of those policies to the mass public. Indeed, where spokespeople for the executive branch or members of Congress often appear publicly to make the case for a given policy or action, the Court simply delivers its opinion and then leaves it to others to communicate it (see, for example, Franklin and Kosaki 1995). As a result, the Court’s policies are extremely vulnerable to the framing effects of the media — no small matter, inasmuch as media frames have a significant bearing on the public’s opinion formation towards the Court’s policies (Clawson and Waltenburg 2003). In this paper, we seek to understand how these consequential media frames come into effect. We do so by going to the source of the frames themselves. Using semi-structured interviews, we examine a convenience sample of the journalists who covered the Supreme Court decisions in the University of Michigan affirmative action cases.1 More specifically, we queried journalists from the mainstream, Black, and Latino media concerning their general approach to covering the Court; their selection of sources; and the role of exogenous forces on the structure, organization, and tone of their coverage. Given the political nature of the story, we expected obeisance to the journalistic norms of “fairness” and “objectivity” (Bennett 1996) in the reporters’ coverage of issues and their selection of sources, particularly among members of the mainstream media. We also expected that both the


Gratz et al. v. Bollinger et al. (539 U.S. 244 [2003]); Grutter v. Bollinger et al. (539 U.S. 306 [2003]).

2 mainstream and minority press outlets’ content would be constrained by their organizations’ structure. This is not to say, however, that we had identical sets of expectations for both types of media. The Black and Latino presses have missions quite distinct from their mainstream counterpart. The former exist to report the news from a Black or Latino angle (Wolseley 1990; Clawson, Strine, and Waltenburg 2003; Rodriguez 1999), to fill in omissions or act as a corrective to the mainstream press’s incomplete and often erroneous coverage of minority affairs. Consequently, we expected substantial differences in the tone or orientation of the minority presses’ frames from their mainstream equivalent (see Clawson, Strine, and Waltenburg 2003). On each of these counts we were not disappointed. All of the reporters participating in our interviews acknowledged the salience of the norms of fairness and objectivity as well as the effect of the protocols operating in their “newsrooms” on their coverage of the University of Michigan cases. We also found that journalists working for the Black and Latino presses approached their coverage from a different perspective than mainstream reporters, a perspective that was consistent with their presses’ mission. This perspective, in turn, affected their preparation for the case, the frames and tone of their coverage, and their selection of sources. We report these findings in greater detail in section 4, which follows a description of our research design. In our study’s first section, we chart the terrain of the University of Michigan cases, taking care to point out the intense public interest the cases generated. In section 2 we turn to a brief review of the discipline’s conclusions concerning the effect of the media on public attitudes concerning the judiciary. We conclude our paper by taking stock of our findings and offer some suggestions for future research.

3 1. The University of Michigan Affirmative Action Cases On December 2, 2002, the U.S. Supreme Court agreed to revisit the issue of the use of racial preferences in higher education by granting petitions for writs of certiorari in Gratz et al. v. Bollinger et al. and Grutter v. Bollinger et al. — the University of Michigan affirmative action cases. When it decided to hear Gratz and Grutter, the Court placed itself in the middle of an emotionally charged and highly controversial issue area, an issue area about which few Americans are ambivalent and which the Court had largely avoided for a quarter of a century. Few issues in modern American politics are more likely to polarize the public than affirmative action policy. By its nature, affirmative action creates winners and losers and intense disagreements over the equity of the solution. Meanwhile, the Court had not spoken to the use of racial preferences in higher education since its seminal Bakke decision in 1978. 2 There, the Court ruled that the use of racial quotas or “set aside” programs for specific numbers of minority applicants was unconstitutional. Higher

educational institutions responded by developing admissions procedures that promoted diversity by using race, gender, and other background characteristics as “plus factors” in their admissions decisions, while avoiding the use of racial quotas. Although this system had accreted over the past 25 years, its use had not settled the issue. Indeed, as the twentieth century closed, the post-Bakke affirmative action system was under stress, and significant cracks were beginning to appear. In 1996, for example, the Fifth Circuit suspended the University of Texas Law School’s affirmative action admissions program and ruled that Bakke


Regents of the University of California v. Bakke (438 U.S. 265 [1978]).

4 was invalid. In 1997 and 1998, California and Washington state banned all forms of affirmative

action in state institutions with Proposition 209 and Initiative 200 respectively. Finally, Florida approved the “One Florida” initiative in 2000, ending affirmative action in state institutions there. Clearly, critics of affirmative action were on the offensive and successfully so. The policy’s supporters, however, could take some heart in the fact that each of these breaks in the system were effectively constrained to a specific region or state. That was all to change with Gratz and Grutter. Because of their appearance in the Supreme Court, they jeopardized affirmative action policy on a national scale. Affirmative action’s proponents were well aware of the danger attendant to the Court’s action; likewise, the system’s antagonists were aware of the opportunity they were being presented to extirpate it. The University of Michigan affirmative action cases began in 1997 when several disgruntled White applicants filed lawsuits alleging that the University of Michigan’s admissions policies used unlawful racial preferences for Black, Hispanic, and Native American applicants. The White litigants argued that both the undergraduate and law school admissions programs’ inclusion of race and ethnicity discriminated against them on the basis of race. Specifically, they contested the undergraduate admissions program’s use of a “selection index,” where points were allocated to minority applicants, and the law school’s use of race and ethnicity as a “plus factor.” The law school, however, awarded no additional points to applicants for minority status.


Hopwood v. University of Texas Law School (518 U.S. 1033 [1996]).

5 Not surprisingly, given the stakes involved, once the Court docketed them, the cases commanded tremendous attention among both the general and special interest publics. A record number of amicus briefs were filed (Thornton 2003). And, while the sheer number of briefs was unprecedented, their lopsided nature was more significant still. Briefs in support of the University’s admissions policies outnumbered those supporting the petitioners by almost 3-to-1. Public and private universities, Fortune 500 companies, the U.S. armed services, and a collection of civil rights groups all filed briefs in support of the University. For their part, the petitioners could claim the support of a phalanx of conservative advocacy groups and the Bush administration — not insignificant allies. Like the advocacy groups, the media recognized the salience of the cases’ appearance in the Court. Accordingly, between December 2002 and June 2003, the major television media (viz., ABC, CBS, NBC, and CNN) devoted four combined hours of evening news and special programming to covering the cases’ acceptance, reactions to the Bush administration’s brief, oral arguments, and the decisions themselves. 4 Furthermore, on the day of the decision, ABC and CNN interrupted their normal programming to announce the landmark rulings and their implications for higher education. Meanwhile, newspapers across the country carried the Michigan rulings as their lead headline, along with related reports or “sidebars” placed above the fold. Black Entertainment Television (BET), indicative of the intense interest in the cases in the African American community, gave over five

During this time period, other major political issues, such as the Texas sodomy case and the passage of the bill outlawing partial birth abortion also captured the media’s attention. By the way of comparison, the media devoted less than an hour of evening news and special programming to these two issues combined.

6 hours of coverage to Gratz and Grutter during the span of the Court’s deliberations. After approximately six months of this relatively intense media focus, the Court announced its decisions. A university may not employ whatever means it desires to achieve the assertedly compelling interest of diversity in its undergraduate student body, but if race was used in a much more individualized and narrowly tailored manner, it could pass constitutional muster. Taken together, the Court’s pronouncements were simultaneously equivocal and Solomonic. They held that racial diversity was a compelling state interest and that state institutions could use racial classifications to pursue that end, but, splitting the baby, they also held that racial classifications could not be used in a way that made them dispositive in the admissions process. In the end, then, the Court maintained the permissibility of the use of race based affirmative action programs in higher education, while limiting the form those programs could take. Perhaps most importantly, from an analytical perspective, the very ambiguity of the decisions invited frames. 2. The Media and the Court It is convention that the media play an important role in a democratic government, making it possible for citizens to gain information on the performance and activities of officeholders and institutions (Fallows 1996; Gans 2003; Patterson 1993). This is especially true in the case of the Supreme Court. Unlike Congress and the Presidency, the Court and its main actors rarely take steps to directly engage or address the public. Instead, it is the media that is the main source in communicating judicial activities to the general public. (Franklin and Kosaki 1995; Graber 1989; Grey 1968; Paletz and Entman 1981; Slotnick and Segal 1998). In short, the media inform the public of the Court’s policies and lay out the implications of those policies for society.

7 Now, in delivering this information, it must be noted that the media have other attendant effects as well. Most importantly, they have the ability to influence and shape how the public thinks about the Court and its policies. The media does so through frames. Frames are definitions and constructions of a political issue. They order the elements germane to an issue, and they identify which elements are important and which are not. Thus, frames establish what any given issue entails, and, if need be, what the solution should be (Gamson and Modgliani 1987). This is not an increasing effect. As Nelson and Kinder put it, “Elites wage a war of frames because they know that if their frame becomes the dominant way of thinking about a particular problem, then the battle for public opinion has been won” (1996, 1058). As noted above, since the Court does not actively engage in this “war,” the framing effect of the media is all the more amplified in the case of policies articulated by the Court. Do media frames of the Supreme Court’s policies and actions affect the Court’s role in the political system? The short answer is yes. Studies have shown that the Court is more capable than other institutions to legitimize controversial policies (Clawson, Kegler, and Waltenburg 2001; 2003; Gibson 1989; Hoekstra 1995; Hoekstra and Segal 1996; Mondak 1990; 1991; 1992). But, using an experimental design, Clawson and Waltenburg (2003) have demonstrated that the manner in which the media frame those policies has a significant effect on the Court’s legitimizing capacity. Aside from finding an effect on the Court’s ability to shape public opinion on policies it articulates, the extant literature on the media and the Supreme Court reveals other noteworthy qualities of the media’s coverage, some of which that raise doubts concerning the media’s performance of its informational role. To begin, analyses of the media’s coverage of the Court find

8 that the media do not always reflect the full reality of the Court’s activities. Scholars have found that newsmagazines, newspapers, and television news present coverage of the Court’s docket that is incomplete and disproportionate. Specifically, comparisons of the actual Court decisions and the number of reports covering those decisions conclude that the media only cover a narrow range of issues. The bulk of coverage focuses on First Amendment and civil rights issues, despite their low number of cases, while a large incidence of cases covering criminal law, economics, business issues, foreign affairs, and elections are largely unreported. Thus, the public receives but a fraction and rather skewed picture of the Court’s business because only the controversial issues are likely to be reported (Bowles and Bromley 1992; Franklin and Kosaki 1995; Katsh 1983; Solomine 1980; Tarpley 1984; O’Callaghan and Dukes 1992; Slotnick and Segal 1998; Spill and Oxley 2003). Not all the media, however, are equally culpable for this myopic view of the Court’s business. Studies comparing coverage of the Court across different types of the media5 have found that newspapers cover a larger number of cases and more closely reflect the variety of issues on the Court’s docket. Newsmagazines and television news, in contrast, barely mirror the Court’s caseload (O’Callaghan and Dukes 1992; Slotnick and Segal 1998; Spill and Oxley 2003). Moving away from the quantity of coverage, researchers also debate the quality of content among the different media. Early studies found that newspaper coverage of the Court was incomplete and inaccurate. Many newspapers simply reported on the reactions to the decisions,


Television, radio, and print.

9 while failing to include either in-depth analysis or the decision’s broader implications on society (Ericson 1977; Grey 1968; Newland 1964). More recently, Spill and Oxley (2003), comparing newspaper and television content, demonstrated that newspapers and television equally cover the content and future implications of the Court’s decisions. Newspaper reports, however, were longer and contained more information concerning the case (e.g., the justices’ rationale, the vote breakdown, and a history of the case) than their television counterparts. Looking specifically at television coverage, Slotnick and Segal (1998) found that the Court’s landmark decisions are represented accurately, but misreporting, as a result of ambiguous and erroneous language, often occurs when the Court decides to hear or decline cases. Finally, newsmagazines have a low quantity of Court reports, but the quality of coverage is relatively high. Scholars attribute this to the newsmagazines’ narrow focus on relatively few issues, which allows more complete coverage of decidedly “newsworthy” Court decisions (Bowles and Bromley 1992; Larson 1985; Solimine 1980). But differences in the media’s coverage of the Court extend beyond print versus electronic outlets. The nature of the media’s coverage also varies across mainstream and specialized media sources, in particular the Black and Latino media. These specialized media target a narrow audience by appealing to its unique background, culture, and interests. The Black and Latino media’s mission is to inform from a Black or Latino perspective. Thus, the specialized and mainstream media report the news in dramatically different ways. To state it more concretely, the Black and Latino media perceive themselves as advocates of their populations and dedicate a fair portion of news to Black and Latino issues, in the process casting their coverage as a corrective to the incomplete and often erroneous coverage found in the mainstream outlets. Accordingly, the Black media focus on issues

10 of civil rights, affirmative action, and discrimination; the Latino press, often reported in the Spanish language, gives increased attention, to immigration and Latino civil rights (Rodriguez 1999; Wolseley 1990). Clawson, Strine, and Waltenburg’s (2003) examination of mainstream and Black newspaper coverage of the Court’s 1995 affirmative action case, Adarand v Pena, showed that the special mission of the Black press was reflected in the nature of its coverage of the decision. Fulfilling its role as an advocacy press, the Black media discussed the implications of the Court’s decision from a “Black angle” by relying on more pro-affirmative action viewpoints and sources. In contrast, the mainstream media’s emphasis on the journalistic norms of fairness and objectivity (see Bennett 1996) resulted in it mentioning both pro and anti-affirmative action interests and sources. Moreover, consistent with its tendency to rely on official sources, the mainstream press cited Supreme Court justices far more frequently than did the Black press. The Black press did mention Justice Thomas relatively often. But even this was consistent with the Black press’s mission. Thomas was not cited so much as an official source as he was mentioned in the context of a Black justice who did not support minority interests. The mainstream press, on the other hand, mentioned Thomas only in the context of his concurring opinion (see Clawson, Strine, and Waltenburg 2003). Given these consequential effects and differences across the various types of media outlets, then, we ask, How do the media go about covering a Supreme Court decision? What forces affect their preparation and coverage? And how do the media present the Court’s decisions to the public? 3. Research Design To answer these questions, we utilize data taken from interviews conducted in the summer of

11 2004 with a convenience sample of 12 journalists working among the mainstream, Black, and the Latino media. The list of journalists was developed by recruiting national and local journalists who reported on the 2003 Supreme Court University of Michigan affirmative action cases.6 Our sample journalists included reporters from the New York Times, Chicago Tribune, Knight Ridder, and the Associated Press (mainstream outlets); NNPA and the Dallas Examiner (the Black press); and El Pregonero, El Neuvo Herald, La Prensa and Diario Latino (the Latino press). (See Appendix A for sample.) We made initial contact with journalists by e-mail or telephone. Journalists were asked to participate in a thirty-minute recorded interview conducted on the telephone. We also held open the possibility of an in-person interview if they preferred that option. During the initial contact, subjects were informed of the nature of the research. In addition, they were told that the interview would be recorded and their responses would not be anonymous. If the journalist was willing to participate, we mailed or faxed the informed consent form to be signed and dated by the journalist. When the signed consent form was returned, we scheduled a time to conduct the interview. During the introduction of the interview, we asked verbal permission for the interview to be recorded and reminded the journalists that their responses would not be anonymous. To investigate how journalists cover Supreme Court decisions, we then asked a series of semi-structured interview


We used several sources to construct the list of journalists who reported on the University of Michigan affirmative action cases. In order to identify national newspaper and broadcast journalists, full-text, guided news searches were conducted using LEXIS-NEXIS under “major papers” and “news transcripts” as the categories. The search terms included “Gratz v. Bollinger,” “Grutter v. Bollinger,” and “University of Michigan affirmative action cases.” We narrowed the search between December 1, 2002, and August 1, 2003, for the national newspaper articles while the television reports were confined to June 23, 2003. In order to identify the local newspaper journalists, we conducted an “advanced search” using Ethnic NewsWatch. The full-text search for all ethnic groups included the subject titles “Gratz v. Bollinger,” “Grutter v. Bollinger,” and “University of Michigan affirmative action cases.” Again, we narrowed the search between December 1, 2002, and August 1, 2003.

12 questions in regards to the University of Michigan affirmative action cases and the Court in general. In particular, we pursued various topics in an open-ended fashion, which encouraged the journalist to provide in-depth responses. Several of the open-ended questions were followed by probe questions that were used if the journalist’s response required further clarification or a follow-up. The probe questions were prepared beforehand and were dependent upon the journalist’s response. At the end of the interview, the journalist was given an opportunity to ask the interviewer questions and to clarify any responses. After the interview was completed, the recorded interview was transcribed for analysis.7 The interview instrument began with a battery of items concerning the reporters’ general approach to covering the Court. It then moved to a series of questions specific to the University of Michigan affirmative action cases. In this section we asked the reporters how they prepared for the case, whether they used a specific organizing theme or structure, how they selected their sources, and whether they attended presentations on the cases organized by interest groups. Finally, we queried them concerning objectivity, the influence of other actors in the newsroom, their perception of their audience, and some basic background characteristics. (See Appendix B for the interview instrument.) The nature of these data allow us to systematically compare how journalists frame Supreme Court decisions, while also attending to the differences among the different types of media outlets. The analysis and much of the evidence that follows takes the form of direct quotations from our respondents. 8

The interviews were recorded on a digital recorder, which were later transferred onto a personal computer. The interviews were then converted into .WAV files using Voice Editor 3® software and were digitally transcribed using Dragon NaturallySpeaking 6.0® software.

For the purpose of this analysis, all interviews that were conducted in Spanish were translated into English.

13 4. Analysis Journalists are the “gatekeepers” of information to the public. Essentially, all journalism is an intervention between the origin of the story and the public. On a daily basis, journalists verify facts and construct information based on what they believe audiences want and need. The main objectives of journalism are to present information to the public that is newsworthy, accurate, understandable and unbiased. To achieve this end, journalists are expected to follow universally recognized norms and values of the “professionalism of journalism” – objectivity and fairness (Bennett 1996, Cook 1998). These norms influence how a journalist receives, selects, indexes and frames information. Simply put, objective and fair reporting pertains to a journalist’s obligation to present fair and neutral news by including both sides of the story and using a balance of sources (Tuchman 1972). While different types of media may appear the same in physical patterns or display, there are significant differences between the mainstream and specialized media. Unlike the mainstream press, Black and Latino media cover the news in a manner that is consistent with their presses’ mission. Thus, the news is often presented from a Black or Latino angle, which may affect the norms of objectivity and fairness (Clawson, Nishikawa, and Waltenburg 2004; Clawson, Strine, and Waltenburg 2003; Rodriguez 1999; Wolseley 1990). We show here that the Black and Latino presses presented coverage of the Michigan cases that was consistent with their mission. Thus, compared to the mainstream, the specialized media appealed to a unique audience and relied on different sources. Newsworthiness We found that all journalists felt that news coverage begins with deciding the

14 “newsworthiness” of the issue (Bagdikian 1990; Shoemaker and Reese 1991). Newspapers receive massive amounts of material daily, and journalists must pick and choose what information is really of interest. Standards of newsworthiness include the importance of the issue, proximity, impact, level of controversy and timeliness (Stephens 1980). In the Michigan affirmative action cases, journalists of all media types indicated that they had allocated a great deal of coverage due to the controversial nature of the issue and the potential influence of the rulings. Steve Henderson from Knight Ridder, similar to other mainstream journalists, explained the newsworthiness of the affirmative action issue: The affirmative action cases were, in most peoples’ minds, very important because affirmative action is such a hot button issue and almost everybody had an opinion about it, even if they really didn’t understand how it worked. It’s just one of those issues that you say to somebody and there’s an automatic light bulb that goes off in their mind about what they think about it…this provided grounds for an incredible amount of attention from the media. I don’t think that I’ve ever seen that kind of attention given to something the Court did, other than during the 2000 presidential election.

Likewise, Dr. George Curry, editor of the NNPA, noted that the affirmative action issue was very newsworthy; indeed, it was so important he had been covering the issue years before its arrival in the Supreme Court: …long before the Michigan cases came to the Supreme Court, we did a piece on racism on college campuses, and our reporter went to Michigan and did a story on based on it…so something we cared about, so we wrote about it a lot beforehand, during, and after. I was just something we watched, and was actually ahead of it on the story. And this is the most important affirmative action case in 25 years before the Court, so we knew that, and we acted accordingly.”

Adding to the salience of the issue was the fact that the nation’s highest Court was at work, with the effect that national policy was being made. As Anne Gearan, from the Associated Press, for example,

15 explained: The affirmative cases were the biggest cases of the last decade. These were huge cases and we paid appropriately huge attention to it. The only reason people were caught up and worked up about these cases…was because of their implications far beyond Michigan, and far beyond the people at hand. Our Michigan bureau wrote about the specific people involved and much more of the precise details of the impact of the rulings.

Audience Appeal According to Graber (1997), a journalist’s selection of news coverage depends primarily on the amount of audience appeal rather than just the importance and impact of the issue. To appeal to an audience, journalists frame their stories based on the orientation of their audience, such as the audience’s location, cultural norms, age, income, education, and level of interest (Shoemaker and Reese 1991). We found, however, that when reporting on the Michigan cases, the mainstream press rarely took audience characteristics into consideration. In most cases, mainstream journalists were unconcerned about their target audience and were unable to characterize their typical reader. They explained that their mission was to report the events surrounding the Michigan cases, which included coverage of student protests, interviews with the plaintiffs, or summaries of the amicus briefs. That is, their role was to inform the public by reflecting the occurring events rather than educating the public on the affirmative action issue or the judicial system. According to mainstream journalists, the public is fairly informed about the affirmative action issue; thus there is no need to provide a lengthy analysis to their readers, only to report the events as they unfolded. As Anne Gearan put it: It [the audience] affects the way I write about the cases obviously. The affirmative action cases…it was easier than a lot of cases because it was a huge and sort of immediately understandable idea. Everybody knows what affirmative action is, what the practical effects of it are. I think it didn’t really matter who the readers were. Anybody can see immediately that this was a case with implications far beyond the

16 specific people on the campus at hand. The basic goal is to write a story in an attractive way that is also fairly straightforward and uses pretty simple language so certainly people who haven’t gone to law school could understand, but also people who haven’t gone to college.

Linda Greenhouse, from the New York Times, explained: As far as audience characteristics, my working assumption was that people were aware that this debate was raging. I didn’t have to remind my readers of the origin of the state. In terms of the subtlety of the legal arguments and all, I wouldn’t assume that everyone would understand the precedents that are being brought to bear here. I know my readers can deal with abstraction and legal principles, but I approached these cases assuming they didn’t know anything about the law…

The specialized media, however, have a different mission that targets their unique audience. Specifically, Black and Latino journalists indicated that they approached the affirmative action issue from a different perspective than the mainstream media. We found that all Black and Latino journalists were clearly aware of their audience and focused on framing their Michigan coverage in a manner that appealed to their unique characteristics. Many journalists explained that their audience made the coverage of the Michigan cases more relevant, because the influence of the Court’s decision affected their readers differently than mainstream readers. As Dr. George Curry explained, the specialized media dedicated more coverage to the affirmative action cases because this was a major issue for their readers: The characteristics of your audience influences a great deal. You know what your audience is, you know what your audience cares about, so what you do is write more about affirmative action than you probably would if you were certainly a white owned newspaper, it’s a different audience, so [for the black media] you would write more before, during, and after because it’s just a more important issue to the community and to the readers we serve…The question is, what is the most important issue for our readers, there’s no question about that…affirmative action is our number one issue.

17 Similarly, a consensus of Black and Latino journalists suggest that citizens want to read news involving their specific communities which identify with their cultural background. Unlike the mainstream press, the Black and Latino media emphasized including more information on the affirmative action cases, such as the history of affirmative action, the origin of the Michigan cases, and the meanings and implications of the rulings, in order to provide their readers with more in-depth information on the issue. Specifically, Black and Latino journalists aimed to illustrate what the affirmative action rulings meant to Black and Latinos, and how the decisions will affect members of their community. For example, Sharron Egiebor from the Dallas Examiner explained that it was not only important to inform the masses, but also the elites, such as community leaders and officials: Our paper is an African American centered newspaper, so our audience was very much interested in what was happening in these cases. These characteristics influence our reporting because we know who is listening. And we know that the issues we were reporting on, were 1) very important, period. And 2) it was very important to the people who were making decisions about how this would affect our community. In that sense, it influenced our reporting because we know who can make changes and we want to make sure that they have all the information in which to make the changes.

While Black and Latino journalists have similar missions, we found that Latino journalists advocated presenting Court coverage that was more educational and understandable for their readers. Latino journalists were aware of their target audience, which consisted of new immigrants who were unfamiliar with how the Supreme Court works as well as the United States legal system as a whole. Thus, as Alejandro Macial from the Diario Latino explained, Latino journalists felt their role was not only to report the news, but also to teach their readers about the judicial system: The frame that we establish, as I insist, has to be very simple so that people can understand it. As all cases are different, our readers are new to this country…it is very important for our readers to understand and believe in the judicial system in this

18 country. We come from systems that are very scarcely believable. It is important that people believe that things work and that they work properly. And that is what we want to promote to our readers.

As further appeal to their audience, Latino journalists emphasized the importance of reporting the news in the Spanish-language. Many Latinos, regardless of their language preference, receive news in both Spanish and English (Rodriguez 1999). The Pew Hispanic Center (2004) reported that Latinos that speak mainly English still rely on Spanish-language media coverage involving their communities and Latin America. Most important, as Alejandro Macial noted, the language in which Latinos receive their news may influence their attitudes toward political issues:

It is very important that you keep in mind that wherever you find the Spanish [language] mass media, this communication does have an important role in the formation of the Latino communities’ opinion.

In addition, Diane Cervantes, from El Latino, highlighted that all Latino journalists expressed the importance of reporting in the Spanish-language to better serve their community’s needs: The Spanish-language media are definitely educating and informing and making the community a part of what is happening in the U.S. I think it is our job and it is very important with the cooperation of the media, of the newspapers, of the press in order to get the information to Latinos and the news about what is going on, inform them about American policies that affect the immigrant communities.

Andrea Acosta from El Pregonero explained: We try to report more thinking of how it would affect the lives of our readers. I would characterize our readers as mostly people that have arrived in the U.S. in the last decade, who do not speak good English, who feel more comfortable reading in their own language. People that have a necessity to know how the education system works, the judicial system, the political system, and is in need of information because he or she in a strange land, therefore there is a need to be informed...I think that even

19 though one has the capacity to understand the Washington Post it is always good to read a newspaper in our own language because it reflects exactly what is going on in our communities. Compared to other [newspapers] in English, they do not have the same grasp of what is going on in our community when they try to inform.

Selection of Sources As communication scholars have found, the selection of sources can dictate how issues are covered in the news (Bennett 1996; Berkowitz 1992; Brown et al. 1987). In general, the way in which the article is framed depends on the material and sources at the journalist’s disposal (Gans 1979). In order to cover international, national, and state news, journalists must rely on accessible and credible sources. On the other hand, sources, particularly interest groups, bombard journalists because they are a direct channel to an audience or policymaker that could be influenced by their information (VanSlyke-Turk 1985). Thus, there is a mutual relationship between journalists and their sources (Gandy 1982). When reporting on the Michigan cases, we found that all journalists gave a great deal of attention to such sources as amicus briefs, transcripts of the oral arguments, experts, academics and all parties involved in the cases. Journalists across all the three presses admitted that interest groups bombarded them with calls, faxes and emails, but they either carefully used their information or refused to use them as a source. For example, Anne Gearan explained that she rarely relies on interest group information: …we got zillions and zillions of offers to speak with the various interest groups and a lot of material that came in…I don’t really think I paid much attention to it. I mean, there were a few things I read and saved, but I don’t have time of space frankly to fool with a lot of that. Dr. George Curry explained: [Interest group contacts] don’t influence me, most of the time, I read through it and throw it away. I file maybe one or two, but oftentimes I’ll just throw it away. That’s

20 just part of being a news organization.

According to Andrea Acosta: I think I have a lot of years writing on the Latino community and we pay special attention to whom is sending the [interest group] press releases. Because we are continuously working with the [Latino] community…we know very well the dynamic of how things are done, we know the leaders, the true leaders of our community. In general, when we get press releases we consider who sent it, what organization is behind it. If we consider that the organization is not serious enough, we immediately discard it at the editor’s desk.

The difference here is, however, that Black and Latino journalists used more information from interests groups and individuals that represented the interests of their community. The Black media relied on press releases and information from The National Association for the Advancement of Colored People (NAACP), the Congressional Black Caucus, and the Urban League along with interviews from political figures, such as Jesse Jackson, Louis Farrakhan and Al Sharpton. For example, for the Black press, Dr. George Curry explained: I like primary documents, and I don’t like people telling me what some document said, I can read the documents myself, so I will look at the pleadings, and…the actual documents that have been filed…the friend-of-the-court documents, because a lot of information is contained in those documents beyond what might even be reported. For example, the history of University of Michigan racism, it’s in the Court pleadings. Also, I talk to people who are involved, especially the NAACP Legal Defense Fund, for example, was involved in this case.

Similar to the Black media, Latino journalists used information from the League of United Latin American Citizens National Office (LULAC), National Council of La Raza, and Mexican American Legal Defense and Educational Fund (MALDEF). When asked what sources they relied on, Latino journalists place more importance on presenting the Michigan cases from a Latino perspective by

21 using sources that “ethnically represented” their community. As Diane Cervantes explained: Official sources are used to get at information regarding numbers and all that. Investigative sources are used a lot with people that have been in the midst of events, happenings, or things of that nature, also a lot of professors, people in academia. For example people here at University of California, San Diego or people at the “Colegio de la Frontera Norte” [a Mexican research institute dedicated to border issues]. I use the “Tomás Rivera Policy Institute” [an independent Latino policy research organization] a lot, and the institute of public policy out of San Francisco and University of California, Los Angeles.

Andrea Acosta added: In this case, I used sources like MALDEF, Marisa Demeo [Regional Counsel of MALDEF’s Washington D.C. office] was at the meeting, she is the leader of our community and I always try to focus on such things. There could be leaders from other communities, Black, White, of course, I focus on the Hispanic leader because they know very well the problems that are affecting us, they know very well our necessities, and they are well informed how the ruling will directly affect our community. Therefore, I try to use sources that are tied to the Latino community, in this case Marisa Demeo.

Along with information from interest groups and experts, journalists also rely heavily on authoritative, official sources produced by the government, particularly Supreme Court Justices (Gans 1979; White 1950). For the Michigan cases, we asked journalists in our sample how they used Justices as official sources. We found that all journalists sought to cite Justices who highlighted a particular aspect of the case, such as the majority opinions from Justice O’Connor and Chief Justice Rehnquist. In divided cases, such as the Michigan rulings, mainstream and specialized journalists indicated the importance of mentioning both the majority and dissenting opinions. From the mainstream press, Anne Gearan explained: When you get to the decision, you always need to quote pretty heavily from the main ruling again, if not directly paraphrasing. You need to tell the reader what the court did and why, reflecting as best we can, the way that the Justice wrote the opinion, and

22 that may be by doing a bit of paraphrasing…If on a divided case, we try to sprinkle a little bit of the dissent in up high rather than relegating it some position low in the story. I’d rather that the reader have a little of both sides of a divided case…

Andrea Acosta noted: I usually use them [quotes from Justices] to try to capture as many different [Justices’] opinions as I can to give the article a diverse feel. I use important quotes from different people, to try to include three or four quotes from each side, as many as I can.

Given the racial nature of the affirmative action cases, we asked journalists if they had paid particular attention to Justice Thomas as a source of interest. As we expected (see Clawson, Strine, and Waltenburg 2003), the mainstream journalists cited Justice Thomas only in the context of his dissenting opinion. Jodi Cohen from The Chicago Tribune explained that she included quotes from all Justices: He [Justice Thomas] wrote a dissenting opinion if I remember and I’m pretty sure that I quoted his opinion. I think we tried to get a quote from every judge in the story and we had a graphic that went with every single judge. At least every judge that wrote an opinion and we did that also with oral arguments…we had a quote from every judge. We were trying to get all of their views across, in both covering of the oral arguments and when we covered the decision.

Journalists writing for the Black press, however, explained the importance of mentioning Justice Thomas in the context of a Black justice that directly benefited from affirmative action, but did not support affirmative action. For example, Dr. George Curry explained: He is important because we’ve had only two African American Justices on the Supreme Court in the whole history, and this one is totally different from the one we had before and this one personally, Thomas, has personally benefited from affirmative action yet remains an opponent. He’s a contradictory person because he’s [on the Court] by the virtue of his race…you know where he’s going to vote but you still have to talk, look at it, and analyze it. It important that you know how he votes,

23 even what his rationale is, that’s important for that reason only, but he’s nothing but Scalia with a black face…

Sharron Egiebor noted: We want to know what he [Justice Thomas] thought, how he weighed in on the decision and what his opinion was. As a black press, it was extremely important to point out Justice Thomas’ opinion.

In contrast to the Black press, several Latino journalists felt that Justice Thomas’ race had no bearing in these cases. Thus, similar to the mainstream, the Latino journalists mentioned Thomas only when discussing the dissenting opinions (see also Clawson, Nishikawa, and Waltenburg 2004). Objectivity and Fairness Though the mainstream, Black, and Latino journalists covered the Michigan cases from different perspectives and used a variety of sources, all journalists acknowledged the importance of the norms of objectivity and fairness. Fair and objective reporting includes presenting both sides to the story using a balance of sources. Specifically, journalists from the mainstream and specialized media strove to include both the pro- and anti-affirmative action positions on both sides of the case. Thus, all advocated serving the public by offering the opportunity to be fully educated and informed about the affirmative action issue at hand. Jacques Steinberg, an education reporter for the New York Times, explained that there was a balance among his articles: …I’m writing a piece explaining the decision, and it’s not a down the middle piece saying, here’s the justices who say they’re for affirmative action and why, and here’s the justices who said that they’re against affirmative action and why. That wasn’t my job that day, but…if you look at the body of my work; I think there’s a balancing. They same guy who writes here’s all these colleges applauding the fact that they can continue to practice racial preferences is the same guy who wrote…a very human look at the people who would like this law changed. So…there’s a balance. There’s also a balance within the paper.

24 Representing the Latino media, Ketty Rodriguez from El Nuevo Herald explained: We try in our articles to reflect all positions. For and against the position, and [we quote] people who can comment on one side versus the other. So we create balanced articles that will be as impartial as possible. We like to present our readers with two sides of the coin. We present the facts or general ideas and then we make a contrast with opinions that differ…

Further, Jodi Cohen highlighted that failing to present both sides of an issue is not only inaccurate reporting, but journalists were aware that bias could lessen their credibility along with the integrity of the news organizations they represent: I think it was really important [to present both sides of the cases] because it was such a heated debate and there were people on both sides. I think it’s really important to have a balanced story otherwise, I would think you would lose your credibility. I think it’s important that the reporting stays as neutral as possible and recognizes how sensitive the topic is.

In addition to asking journalists if they reported both the pro- and anti-affirmative action sides, we asked if they felt it was appropriate to be an advocate for one side or the other. All journalists responded that their position was not to be advocate. In fact, most journalists stated that advocacy was completely inappropriate when reporting the news and should be reserved for the editorial pages. Linda Greenhouse explained: It wasn’t that…I saw myself as an advocate, but kind of the other way around, I was simply reflecting what was occurring…What I try to do is reflect the reality that’s occurring, and the reality was that the Michigan position seemed to be attractive to a very wide slot of society…to me that was news. Whereas on the other side, because there was really no participation in the debates by organizations beyond those whose own mission…was just to defeat affirmative action, there wasn’t a lot to say on that side… I felt I had to kind of struggle to reflect the other side that wasn’t doing a very effective job of reflecting itself. For the Black press, Dr. George Curry explained:

25 For news, you’re obligated to give the arguments from both sides. You’re supposed to write the news story, write the cover story, not be an advocate for anything when you are writing a story.

Despite the emphasis of fairness from the specialized media, it is evident here that what is considered “fair” is different for the Back and Latino media. Fairness for the mainstream media is presenting both sides of the issue in a neutral and balanced manner. The specialized media also present both side of the issue, but they present the news with a Black and Latino angle. We found, while reporting on this controversial issue, several Black and Latino journalists explained that they struggled to balance their desire to give voice to their minority group with the need to be impartial. That is, the journalist’s mission to appeal to their unique audience affected the norms of objectivity and fairness. Andrea Acosta explains: I think it is important to present both sides of the story. However, obviously when you are talking about a newspaper that services the Latino community it becomes a bit difficult to be totally impartial. What we try – like good Latinos, we have the intention to favor the rights of Latinos. Here we are talking about values that weigh more on the balance because we feel that we are the voice for the Latino community, generally a community that does not have a voice. Therefore, you could say that our articles sometimes come out a little less balanced. Generally, however, we reincorporate both sides of all topics.

In addition, consistent with their mission, several Black and Latino journalists indicated that they reported information that was not included in the mainstream media. Specifically, journalists from the specialized media presented facts and opinions about the Michigan cases that were not dealt with by mainstream journalists. In this case, journalists explained that the news they presented attempted to overcome portions of the news that the mainstream media either erroneously reported or failed to

26 include. Dr. George Curry explained that the mainstream press failed to include a full description of Michigan’s undergraduate admissions policies: …what is the most underreported things about the Michigan case…which was on all other instances where people get points, for whether you live in the upper North peninsulas…whether you are a scholarship athlete, or whether the provost decided to give you extra points, and these things are just as important because they’re given the same amount of points if someone is a person of color. If it is a disadvantaged white, a poor white person, they get the same amount of points…If you tell me all that, I’m gong to look at things differently…If you only tell me you area giving 20 points to African Americans, then I have a different point of view…So what irks me about the [mainstream] media is that they have been acting like this is isolated incident by only referring to people of color…

Constraints of the Newsroom Journalists enjoy a fair amount of autonomy when writing a news story, but they also represent organizations that can place limits on their decisions. In most cases, the editors choose what information is newsworthy and the journalists write the story at their discretion. After making the necessary changes to the story, the editors decide whether to include the story and where to place it in the newspaper (Bagdikian 1990). All journalists explained that developing a news story was largely a collaborative effort between the editor and journalist. Further, we found that all journalists indicated a fair amount of autonomy when writing their stories but were sometimes constrained by story length or available space. Jacques Steinberg explains: I’m sure this was shaped in conversation between me and the education editor, how I can show the Supreme Court is going to affect life in college…I can’t put my own stories in the paper, when I went to an editor and said I wanted to write a story on the plaintiffs, I was told fine, and I was given a lot of length to do that, when I said I wanted to do a news analysis of Linda’s [Greenhouse] lead of the paper and this is my idea, I was told that would be interesting or helpful. But, I don’t edit my own pieces, and I don’t put them in the paper. I don’t put headlines on them, but I had a fair amount of autonomy which was born in part out of having covered the issue for

27 almost 4 years. From the Latino press, Alejandro Maciel explains that he enjoys complete autonomy with little editorial influence: I believe that total autonomy exists, it [editorial influence] is only in regards to make sure that the editorial line of the newspaper is being followed, that the right of the readers are being respected, in that sense of high sounding words and things of that nature. Further, Andrea Acosta explains: This case was placed on the front page. That is the editor’s decision, after reading the article he decided whether or not it is important enough, considering all other news of the week, for it to be on the front page. While all journalists explained that they wrote their story with little editorial influence, we also found that many journalists had self-imposed constraints, such as page-length, in order to preserve their credibility. As Linda Greenhouse explains, she limits the length of her stories to strengthen her reputation: It’s always competing with everything else that’s going on…but I’ve made modest space requests because I want to preserve my credibility for something really important. But there’s been a lot of competition for real estate in the paper…these days and so I’ve been asking for say, a thousand words, when, in the past I might have asked for 1200 or something, you know they say build up a reputation for credibility. Additional constraints include the structure of the news organization itself. Unlike the mainstream press, the specialized media were constrained by smaller staff and personnel. Mainstream papers have the luxury of a much larger staff, which allows individual journalists to work only on the Supreme Court “beat.” The Black and Latino media have smaller staffs that only have the time to cover a limited number of issues. Dr. George Curry elaborated: When you have a limited staff, you can’t write everything that the AP can write

28 about, you don’t have this big news organization, hundreds of people…so you make choices…and be more comprehensive in which you could reach more…, cover more things, and the reality of it is you got to make decisions about what’s the most important [issue]. For the Latino press, Ketty Rodriguez explained: In this case, we tried to inform the public [about] what’s going on. Unfortunately, we do not have enough personnel or reporters who cannot write everything about something that we consider important and controversial for the implications it has, especially in minority groups.

Discussion and Conclusion: Clearly, the missions of both the mainstream and specialized press affect their coverage of the Supreme Court. The ethnic press’s emphasis on presenting stories in a manner that is reflective of their readers’ interests influences both their selection of sources and the manner in which they present information concerning the Court and its rulings. For sources, they emphasize actors who are ethnically or racially representative of their audience. As a result, different viewpoints or notions of the issue and the Court are likely contained in their accounts. Perhaps more important still, these presses seem to be more mindful of their audience’s interests with respect to certain issues. This leads them to present more detailed information concerning the issue before the Court as well as the effects of the Court’s rulings for their readers or those like them. In short, it appears that the specialized press’s mission with respect to their audience encourages them to cover the Court more directly as a political actor that renders decisions with real and substantial policy implications. Therefore, the specialized press’s Supreme Court coverage does not contribute to the myth of the Court as an apolitical guardian of the Constitution. Consequently, their readers may hold the Court is less high esteem than the readers of the mainstream press.

29 The mainstream press’s mission, for its part, appears to be to inform the public in a “neutral” or “objective” manner. This press is less mindful of structuring its coverage to play to the unique or special interests of its audience. Instead, its emphasis is presenting the “facts of the story,” covering both sides of the issue. Obviously, this affects the mainstream press’s selection of sources, leading them to draw on “official” sources and to search out, if necessary, sources to square the coverage. Linda Greenhouse illustrates this point rather well, when she noted that she had to seek out information from the anti-affirmative action side to ensure that it was adequately represented. “I really had to sort of labor to cover the other [anti-affirmative action] side because I didn’t think [it] was presenting itself in a way that was generally all that newsworthy.” As was the case for the specialized media, the mainstream press’s mission affects how they cover the Court, which in turn might well affect how their audience perceives the institution. The mainstream press’s emphasis on official sources, balance, and objectivity results in stories emphasizing the formalistic and legal nature of the Court’s actions and it as an institution. And this in turn likely contributes to their readers possessing rather high levels of diffuse support for the Court. As Gibson, Caldeira, and Baird put it, “to know the courts is to love them, because to know them is to be exposed to a series of legitimizing messages focused on the symbols justice, judicial objectivity, and impartiality” (1998, 345). Although likely true in the abstract, our interviews suggest that the effect of this exposure might vary with the source of the exposure. It might well be that the audiences of the different presses have very different attitudes toward the Court because of the way the Court is presented to them. Resolution of that question, however, must await another day.

30 Appendix A: Journalist and Newspaper Information

Journalist Mainstream Press 1. Jodi Cohen 2. Anne Gearan 3. Linda Greenhouse 4. Steven Henderson 5. Adam Liptak 6. Jacques Steinberg

Journalist Job Description Education Reporter Supreme Court Reporter Supreme Court Reporter Supreme Court Reporter Legal Analyst Education Reporter

Newspaper or Wire Service Chicago Tribune Associated Press New York Times Knight Rider New York Times New York Times

Newspaper Location and Distribution Information - Chicago, IL - Daily - New York, NY - Daily/Wire Service - New York, NY - Daily - San Jose, CA - Daily/Wire Service - New York, NY - Daily - New York, NY - Daily - Washington, D.C. - Media service to over 200 weekly African American newspapers - Dallas, TX - Weekly - Washington, D.C. - Weekly - Reported in Spanish - San Diego, CA - Weekly - Reported in Spanish - San Diego, CA - Daily - Reported in Spanish - Miami, FL - Daily - Reported in Spanish

Date Journalist Interviewed 7/19/2004 9/21/2004 6/9/2004 9/3/2004 6/21/2004 6/28/2004

African American Press 1. Dr. George Curry


National Newspaper Publishers Assoc. (NNPA) Dallas Examiner


2. Sharron Egiebor Latino Press 1. Andrea Acosta



Staff Reporter

El Pregonero


2. Diane Cervantes

Staff Reporter

El Latino


3. Alejandro Maciel

Staff Reporter

Diario Latino


4. Ketty Rodriguez

Education Reporter

El Nuevo Herald


31 Appendix B: Interview Instrument

Section I: I will begin by asking you a couple of questions about how you cover the Court in general.

1. First, do you have a conventional approach when you report on the Court? Can you elaborate on your approach? Probe: How much preparation do you do before the Court rules? If NO: If you do not have a conventional approach, how and why does your approach vary when reporting on the Court? 2. When reporting on the Court, how do you decide whether to report on a Court case as a human interest story or more of a legal/constitutional story? 3. How do you decide whether to focus your report on the general facts of a decision versus the broader implications of the Court’s decision on the public? Are the facts more important than the implications?

Section II: Now, I’d like to ask you some questions specifically about covering the University of Michigan affirmative action cases. 4. When writing your report on the Court’s Michigan decision, how did you choose to organize the story? Do you choose a specific organizing theme or structure?

5. How did you decide which sources to rely on? Probe: Official sources? Transcripts of oral arguments? Friend-of-the-Court Amicus Briefs? Interest groups? Experts? Academics? Probe: Official sources? Interest groups? Experts (academics, for example)?

Probe: Several journalists I have interviewed mentioned attending Friend-of-the-Court amicus brief presentations (i.e. Fortune 500 companies, retired military officers), did you attend any of these presentations? Were you invited to any of these presentations? Probe: Some earlier research has suggested that journalists are bombarded with press releases and phone calls from interest groups and that this might even backfire on these groups. How do these interest group communications influence your reports? Do you

32 have a perspective on that?

6. How about Supreme Court justices? How do you decide whom to quote? Probe: What about Justice O’Conner since she wrote the majority opinion in Grutter? (the Law school case) Probe: How does Justice Clarence Thomas fit in here given the racial nature of the cases? 7. As you know, there is this myth of the Court that Justices are above politics, neutral, and impartial. Are you concerned about undermining OR reinforcing that myth in your reporting?

8. As you reported on the Michigan cases, how important was it to present both the pro- and anti-affirmative action positions?

Probe: Do you feel that is appropriate for you as a reporter to be an advocate for one side or the other?

9. How would you characterize your typical reader? Probe: And how did those characteristics influence how you reported on the Michigan cases? Probe: What about public opinion in general? Did that influence your reporting? 10. How much autonomy did you have when covering the Michigan cases? In other words, how much influence did you editor/producer/anchor have over your reports?

Probe: Do you take into account market considerations when writing your column? 11. Newspaper/Magazine: Did you choose the pictures that went with your report? If YES, follow-up: How did you make those selections? If NO, follow-up: Who made those selections?

33 12. Newspaper: If not pictures: We noticed there were no pictures with your report on the Michigan cases, why was that? If reporter: How did you make those decisions?

13. For COURT reporters only: The University of Michigan affirmative action cases and the Lawrence v. Texas sodomy case were decided at roughly the same time. How did having another big, controversial case come down affect your reporting on the Michigan cases?

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